New Mexico Injury Attorney Blog

Often personal injury claims in New Mexico present the possibility of bringing a loss of consortium claim. This is particularly so in cases of serious personal injury. A loss of consortium claim is brought on behalf of spouse or child of the injured person.

New Mexico law specifically allows for an award of damages for loss of consortium. New Mexico Uniform Jury Instruction 13-1810A provides for recovery by plaintiff's spouse or child for the "loss of the society, guidance, companionship and sexual relations resulting from the plaintiff's injuries." Essentially, the spouse or child is awarded damages for their own emotional stress and loss associated with the plaintiff's injuries.

In a wrongful death case, the losses can be devastating to a surviving child and spouse. Loss of consortium claims and damages awards can be very large in wrongful death lawsuits. In the case of the wrongful death of a loved one, there is no question that a loss of consortium claim should be included in the wrongful death lawsuit.

Fortunately, only a very small percentage of personal injury claims involve death. Most personal injury claims involve some level of damages for physical injury along with the pain and suffering that goes with those injuries. In most cases, loss of consortium claims arise from a disruption of the relationship between the plaintiff and his or her family as a result of the physical injuries. Often physical injures do cause significant pain and suffering which impacts the daily activities of the plaintiff, including familial activities of every sort. In cases of serious injuries, the plaintiff may also suffer emotional damages such as depression and acute anxiety related to the injuries. These too disrupt the relationship between the plaintiff and his or her family.

The loss of consortium claims has come to be most closely identified with a loss of sexual relations between the plaintiff and his or her spouse. This loss can be significant. Even with moderate soft tissue back injuries, physical activity including sexual relations can become very uncomfortable. There is no question that the disruption of sexual relations presents very real losses often with significant emotional consequences for the relationship.

That being said, the emotional costs of bringing the loss of consortium claim may outweigh any recovery. These costs should be weighed carefully before jumping into a loss of consortium claim.

A loss of consortium claims implies strong emotional bonds and active sexual relations between the plaintiff and his or her spouse. The discovery process on these matters can be burdensome, invasive and embarrassing. Discovery is very broad in a personal injury lawsuit. There are few topics that are off limits particularly when the issue is raised by the plaintiff. The defendant's attorneys will pry into every corner of the relationship between plaintiff and his or her spouse. It takes little imagination to figure out where the investigation will lead.

The question every plaintiff and his or her spouse must ask is whether the loss of consortium claim is worth the emotional stress of opening up these private matters. The answer may very well be yes, but it is important to weigh these considerations before moving forward with the claim.

Related Reading:
Community Property Issues in New Mexico Personal Injury Lawsuits
Loss of Consortium Claims: Discovery Can be Brutal
Sibling Loss of Consortium Cases in New Mexico

Collins & Collins, P.C.
Attorneys at Law

In personal injury lawsuits against any governmental entity in New Mexico, the New Mexico Tort Claims Act requires that a Tort Claims Notice be sent to all possible governmental defendants within 90 days of the incident. This is a strict requirement and missing the 90 day deadline will bar the personal injury suit completely.

The contents of the notice are pretty straightforward. The Tort Claims Act simply requires that the entity be placed on notice of possible claims against it. The Act requires that the written notice state the time, place and circumstances of the loss or injury. In an abundance of caution, unless there is a good reason not to, we typically set forth all of the important details of the incident including date of the incident, the names and the parties responsible for our client's injuries, their titles or other relationship to the named entity, the location of the incident, a brief description of the incident and a description of our client's injuries.

The governmental entity to receive the notice is sometimes a little trickier to determine. You must first determine if a governmental entity is involved which is sometimes more difficult than it sounds. Once you have determined that a governmental entity is involved, the Act itself provides guidance on who should receive the notice in its language at NMSA §41-4-16:

"Every person who claims damages from the state or any local public body under the Tort Claims Act shall cause to be presented to the risk management division for claims against the state, the mayor of the municipality for claims against the municipality, the superintendent of the school district for claims against the school district, the county clerk of a county for claims against the county, or to the administrative head of any other local public body for claims against such local public body, within ninety days after an occurrence giving rise to a claim for which immunity has been waived under the Tort Claims Act, a written notice stating the time, place and circumstances of the loss or injury."

It is important that you strictly follow the dictates of the Act. Failure to provide notice to the appropriate authority will bar your claim no matter how well-intentioned you were in delivering the notices to the wrong parties.

The Notice should be sent by certified mail return receipt requested so that you can verify that the Notice was sent and received. This is particularly important when the deadline is looming and any error or failed delivery could be fatal. Keep in mind also that certified mail takes significantly longer to deliver. If the deadline is immediate, like right now, then send the notice by email and fax and pony express if necessary to get the notice there by the close of business on the deadline date.

Related Reading:
Personal Injury, Insurance Coverage and the Lies of Tort Reform
Medical Malpractice Claims Raise Unique Statute of Limitations Issues
New Mexico Statute of Limitations & Exceptions -- Time is Always of the Essence!

Collins & Collins, P.C.
Attorneys at Law

Personal injury lawsuits against governmental entities in New Mexico have surprisingly quick deadlines. These deadlines arise under the New Mexico Tort Claims Act. You should be aware of the Act's deadlines if you are suing a state, county or city governmental entity in New Mexico. Missing these deadlines even by a day will bar your personal injury claims.

Personal injury lawsuits covered by the New Mexico Tort Claims Act would include medical malpractice claims against government run medical providers such as the University of New Mexico. They would include suits against any state, county or municipal hospital or clinic. Also included would be suits involving city streets or transportation such as the City of Albuquerque for public transportation accidents or problems with the city streets or sidewalks. The Act would also cover suits against state, county or city law enforcement for civil rights claims or even auto accidents involving law enforcement. The range of these suits is very broad so it is important that you determine immediately if a governmental entity is involved.

If your personal injury claim involves any governmental entity whatsoever, then the New Mexico Tort Claims Act applies. Under the Tort Claims Act, the injured person, or his or her representative must send a Notice of Tort Claim to the appropriate entities within 90 days of the incident. It is important to note that a separate notice must be sent to each entity that may be a defendant in the lawsuit. This is a firm deadline and failure to send the notice within the 90 day period will bar your lawsuit completely.

In addition to the 90 day Tort Claims Notice requirement, the statute of limitations is shorter than the normal 3 year period for personal injury lawsuits against private non-governmental entities. In personal injury suits against governmental entities, the statute of limitations is only 2 years. Again, this is a firm deadline and failure to file a lawsuit within the 2 year period will bar your claims.

Most people injured at the hands of governmental entities such as those set forth above are unaware of the Tort Claims Act or its deadlines. Many injured persons miss the 90 day deadline before they even contact an attorney. Unfortunately, if this happens, there is very little an attorney can do for those folks except in very limited situations. Missing the deadline even by a single day will bar the claims.

Because these deadlines are very strictly enforced, you should immediately make arrangement to send out the Tort Claims Notice. You should contact an attorney for these purposes as soon after the accident as possible. Many wait until the 90 deadline is almost up before contacting an attorney. Many law firms, including this one, will be extremely reluctant to take a case with a looming tort claims deadline.

If you do not have an attorney for purposes of sending out the tort claims notices, you should send them yourself. Once the tort claims notice requirements have been met, you will have additional time to hire an attorney for the pursuit of your lawsuit. You need to make sure that the appropriate governmental entity or agency receives the notice. If there is any doubt as to the appropriate party, you should err on the side of caution sending tort claims notices to all possible governmental defendants.

Related Reading:
Medical Malpractice Claims Raise Unique Statute of Limitations Issues
Tolling of Statute of Limitations is Rare
Extension of Statute of Limitations in New Mexico for Cases Originally Filed in the Wrong Court

Collins & Collins, P.C.
Attorneys at Law

The valuation of your personal injury claim is generally the primary basis of argument between you and the insurance company on the other side. Of course, liability or fault must be proven before the value of your claims becomes relevant.

Once you have proven liability pursuant to New Mexico Uniform Jury Instruction UJI 13-1801, you can recover for damages, Medical Expenses, Non-Medical Expenses, Lost Earnings (Past & Future), Pain & Suffering (Past & Future), Permanent Injuries or Disfigurement, Aggravation of Preexisting Conditions/Injuries, Loss of Consortium, and Loss of Household Services.

Pain and Suffering is often the most hotly contested issue. Pain and suffering includes both physical and emotional pain. Physical pain is difficult to document in itself, but will often be set forth in the medical records. Emotional and psychological pain is significantly more difficult to calculate, making it easier for the insurance company to dispute.

Once your damages have been determined and persuasively presented to the insurance company, the insurance company will then perform its own calculations for the valuation of your claims. Typically, the insurance company will use a multiplier of your total proven damages for its valuation.

When there are relatively minor injuries, the insurance company should offer 1.5 to 2 times medical expense. Where there are serious injuries involving significant pain, rehabilitation, and long-lasting injuries, the insurance company may offer 3 to 5 times medical expenses. In cases with severe injuries with permanent harm or disfigurement, the damages can go much higher. Often severe and permanent injuries will include significant recovery for lost earnings. In fact, these damages will typically be the great majority of the damages recovered.

Damages are dependent on the facts and circumstances of each individual case. Your case may include some or all of the damages recoverable under New Mexico law. It is important to keep in mind all of the damages recoverable under the Law so that you assist your attorney in documenting your injuries. If you have suffered any of the injuries allowable under the New Mexico Uniform Jury Instructions, be sure you pass the information on to your attorney so that nothing is overlooked.

Related Reading:
Personal Injury Contingency Fee Arrangments Essential to Justice System
Steps Necesssary to Prove Your Damages in a New Mexico Personal Injury Case
Punitive Damages in New Mexico: What is Reasonable?

Collins & Collins, P.C.
Attorneys at Law

New Mexico is a comparative negligence state. As a result, it is possible for someone involved in an auto accident to recover damages even if he or she is partially responsible for the accident.

This is in stark contrast to those states that follow contributory negligence rules. Contributory negligence doctrine precludes a driver from recovering anything for his or her injuries for even minor negligence. The contributory negligence model has very harsh and unfair results since minor negligence is present in almost every accident. Contributory negligence doctrine also encourages insurance companies to fight liability even where their driver is clearly responsible for the accident. There is a big payoff for a finding of contributory negligence since it excludes recovery where any contributory negligence is found.

Fortunately, New Mexico follows the much fairer comparative negligence model. Under comparative negligence, the injured party must still prove liability or fault on the part of the other driver. However, some minor negligence will not completely preclude recovery. Instead, the law will apportion fault to the parties. Any damages will be reduced by the percentage of fault attributable to the injured party.

For example, if the injured party proves $10,000 damages and it is show that he or she is 50% responsible for the accident, then the total recovery will be reduced by 50% to $5000. This doesn't seem like much but in cases involving extraordinary damages, the recovery can be quite large even after the reduction for comparative fault. For instance, if the case involves permanent injuries or even death, the damages can be very large so that even with a 50% reduction in damages, the settlement or judgment can be substantial.

A wrongful death action can result in damages well in excess of a million dollars. Depending on the circumstances, the damages can rise to the millions. Under a contributory negligence model, the injured party or the estate would be prevented from recovering any damages at all if there was the presence of any contributory negligence. Under the comparative fault model, the injured party or the estate would recover reduced but still significant damages.

Related Reading:
Joint and Several Liability: Auto Accidents & Negligent Medical Care
Comparative Negligence in New Mexico Slip and Fall Claims
Comparative Negligence Decided by Jury in New Mexico Personal Injury Cases

Collins & Collins, P.C.
Attorneys at Law

An Albuquerque jury delivered a huge $54 million verdict on December 1, 2009 sending a message to ResCare, Inc. that their behavior would not be tolerated.

The case involved a severely mentally disabled man who was raped by of the staff members working at the facility where he lived. Compensatory damages were awarded in the amount of $4.95 million. The remainder of the verdict was for punitive damages against ResCare, Inc. and ResCare New Mexico.

ResCare had denied responsibility and liability throughout the case and throughout the trial. The attorney for the defense argued in closing that sometimes bad things just happen no matter what you do. The jury didn't buy it, and sent a message that such an abrogation of corporate responsibility for the acts of its agents is intolerable.

It is hoped but doubtful that nursing homes and group home management companies will take note. Instead, it is more likely that these entities will continue to dodge responsibility at every turn. Rather than accepting responsibility for their corporate acts and the acts of their agents, that are by the way highly profitable, they will instead deny responsibility or liability from the outset in every case of abuse no matter how atrocious and clear the liability. They will likely continue to shield their true ownership making such filing a lawsuit and getting the right parties named and served a indecipherable labyrinth.

Yes the jury did send ResCare and the industry a message. The real question is was the message received. It is doubtful and the coming days of appeals and continued dodging will provide the answer.

Related Reading:
Mandatory Arbitration Ruling is Victory for Victims of Nursing Home Negligence and Abuse
Huge Nursing Home Verdict Brings Predictable Cries for Tort Reform
Nursing Home Abuse and Medication Issues

Collins & Collins, P.C.
Attorneys at Law

Dram shop lawsuit in results in $1 million damages verdict against a bar that served the intoxicated driver that struck and killed a bicyclist while returning home from the bar. The driver, Melissa Arrington, had been drinking at Berky's bar prior to the accident. At the time of the accident, Ms. Arrington was driving while intoxicated with a breath alcohol level of .15, almost twice the legal limit.

The parents of Paul L'Euyer brought the suit under the wrongful death statute on behalf of their son. The suit was filed in Tucson against both Berky's Bar and Melissa Arrington. The suit against Berky's was brought under the state's dram shop laws that are common in many states, including New Mexico. Dram shop laws hold bars, taverns, and restaurants liable for serving intoxicated persons who later injure innocent parties.

The lawsuit also named Melissa Arrington individually. Ms. Arrington was later convicted and sentenced to 10.5 years for vehicular homicide. Despite her undisputed liability, her insurance company was able to settle on her behalf for only $25,000.

The case raises several important points. First, bars and restaurants are liable for negligently serving alcohol to intoxicated persons who are later involved in accidents or even intentional torts. The damages against bars and restaurants can be substantial as was the case in the case of Berky's who has since closed its doors.

The case also illustrates the issue of underinsured motorists. Ms. Arrington, who is now in prison, carried only $25,000 in liability coverage, the statutory minimum insurance liability policy limits in most states, including New Mexico. If not for the insurance of Berky's, Mr. L'Euyer's parents would likely have recovered only $25,000 for their son's death. Sadly, a lawsuit simply would not have been feasible in light of Ms. Arrington's minimal insurance coverage.

Though the news accounts do not address whether Mr. L'Euyer carried uninsured and underinsured insurance coverage, had Berky's not been in the chain of negligence, Mr. L'Euyer's total recovery would have been only $25,000. Over 1 in 6 motorists nationally are uninsured. Greater percentages are grossly underinsured. The rates are even higher in New Mexico which leads the nation in uninsured motorist at 29%.

The fact is if you are involved in an car or automobile accident in New Mexico, the other driver will likely be uninsured or underinsured leaving you and your family to bear the costs of the accident, injuries, and the loss of income on your own.

Related Reading:
Reach of New Mexico Dram Shop Laws Extends to Business Wining & Dining
Dram Shop Liability: Shifting Burden of Proof
New Mexico Dram Shop Liability Extended to Protect Intoxicated Patrons

Collins & Collins, P.C.
Attorneys at Law

Huge Verdict In Trucking Accident Involving Texting Truck-Driver

A 21 year old college student was awarded $49 million in damages to a Santa Clara verdict for brain injuries he suffered in an auto accident. Drew Bianchi was traveling with friends on a camping trip when two trucks collided on the center line sending one of the trucks careening into the rear of Bianchi's vehicle.

As is the case in many trucking related accidents, Drew suffered very serious injuries including severe and permanent brain injury. He now lives full time in the treatment facility unable to care for himself. It is expected that he will remain in care facilities for the rest of his life.

Bianchi sued both trucking companies and the truckers individually for reckless driving. It was alleged that while one trucker veered recklessly across the center line, the other driver was recklessly texting and inattentive.

The case suggests a trend likely trend in car and automobile accidents. Texting is increasingly common throughout society. Unfortunately, many find the urge to text even while they are driving. Driver inattentiveness is a leading cause of car accidents. This is especially true among younger drivers. The lure of texting to teenagers is not surprising. The lure of texting for truck drivers is both surprising and frightening.

Trucking accidents typically involve far greater injuries, often death, than run of the mill automobile accidents. The physics are clear. Trucks are huge, they are heavy, they are often moving rapidly, and do not easily come to a stop. Driver inattentiveness is a serious concern for all drivers with the incidence of car accidents involving mobile phones and texting rising rapidly. The fact that truck drivers are texting while driving creates a new level of concern. After all, if they are texting, they are also talking on their phones.

The trend in texting and mobile phone use while driving is clear. The case of Drew Bianchi suggests that car accident lawsuits will reflect the trend with increasing numbers of lawsuits filed for recklessness. It is common to allege recklessness in cases involving mobile phone use and now texting. Juries will likely begin to routinely accept these arguments as the accident statistics related to mobile phone use and texting continue to mount.

Related Readings:
Employer Liability for Texting Employees
Hypertexting & Hypernetworking: Busy Hands are the Workshop of the Devil?
Past and Future Driving Evidence: Limited Admission in New Mexico Auto Accident Claims

Collins & Collins, P.C.
Attorneys at Law

The Insurance Research Council (IRC) has found that New Mexico leads the nation in uninsured motorist. Twenty-nine percent of New Mexico Motorists have no insurance. This does not reflect the true scope of the problem as many more are underinsured.

The IRC predicts that by the year 2010, 16.7% of drivers nationally will be uninsured. In 2007, the percent stood at 13.8%. This is a disturbing trend. The IRC suggest that the economic downturn has led to the rise in uninsured motorists. As the economy continues to falter, the situation is likely only to get worse. This is particularly true in New Mexico which is a relatively poor state. Continued problems with the economy will undoubtedly lead to not only an increase in uninsured New Mexico motorists, but also to an increase in underinsured motorists.

According to the report, there is a strong correlation between the number of uninsured motorists and unemployment. With every one point percentage increase in unemployment, there is a rise of 3/4 percentage point in uninsured motorists, almost 1 to 1 ration. With national unemployment hitting 10%, the number of uninsured motorists is likely to continue to climb dramatically.

Again these numbers do not ever begin to address the equally if not more significant issue of underinsured motorists. In New Mexico, if you are in an accident, you have a 29% chance that the other party has no insurance. The chance that the other party has only minimal insurance policy limits of $25,000 is significantly higher.

In a serious accident, even $25,000 will not come close to covering your injuries and other damages. It is important in New Mexico to carry high underinsured coverage limits. This may be the only coverage available for you and your loved ones in a serious accident.

Related Reading:
Statute of Limitations on Past Denial of Uninsured/Underinsured Motorist (UM/UIM) Coverage in New Mexico
Notice Requirements in New Mexico Uninsured/Underinsured Motorist Cases
Federal Court Forces Insurance Company to Provide Uninsured Motorist Benefits

Collins & Collins, P.C.
Attorneys at Law

The Obama administration has issued a report indicating that almost 60,000 people were killed and 515,000 were injured in 2008 in auto accidents as a result of driver distraction. Driver inattention was involved in 16% of all fatal crashes in 2008.

The largest percentage of those accidents involved drivers under the age of 20. The Insurance Journal suggests that many of these accidents were the result of mobile phones and texting. Remarkably, 18% of those surveyed for the study admitted to having texted while driving in the month prior to their survey.

In response to the growing problem, and the apparent irresistible urge to text, 18 states and the District of Columbia have made the practice of texting while driving illegal. Seven other states have outlawed cell phone use completely while driving. Numerous highway safety groups haves urged a nationwide ban on cell phone use and texting while driving.

The greatest concern for public safety is in the area of texting. Texting popularity is explosive growing form 10 billion messages a month to 110 billion per month in the three year period December 2005 to December 2008.

Like many areas of public safety, the change will come in the courts through lawsuits. The persuasive power of the personal injury lawsuits persuades like no other argument can. As punitive damages claims continue to climb and meet with growing success, the legislation will follow.

In the meantime, watch out for anyone staring at their lap and load up on uninsured and underinsured coverage. Rest assured in New Mexico, with the highest rate of uninsured motorists in the country, the kid that just barreled into while texting his girlfriend is either uninsured or severely underinsured.

Related Reading:
Texting & Driving Don't Mix
Huge Verdict In Trucking Accident Involving Texting Truck-Driver
Hypertexting & Hypernetworking: Busy Hands are the Workshop of the Devil?

Collins & Collins, P.C.
Attorneys at Law

An apology works in medical malpractice claims in 35 states. In fact, the "Sorry Works" program has been put into legislation in 35 states. Unfortunately, New Mexico is not among them. Instead, New Mexico often takes same hard-line on medical malpractice against its states facilities and other medical providers. It is not quite as harsh as the no settlement policy that former Albuquerque Mayor Martin Chavez took in police misconduct cases. But it is equally costly to the state.

The power of an apology in medical malpractice claims, the foundation of the "Sorry Works" program, is illustrated by the recent settlement of a lawsuit filed against Rhode Island hospital by Oscar-nominated actor James Woods for the wrongful death of his brother. Of course, the apology came in the 4th week of trial. But when it came, the case quickly settled. The hospital finally apologized, acknowledged its wrongdoing, and agreed to start an institute in the name of the famed actor's brother. The institute will of all things work toward the prevention of human errors in hospital care.

In addition to the apology, the Woods family received an undisclosed financial settlement. Michael Woods died of a heart attack at 49 years old after going to the ER for a sore throat and vomiting. The Woods family claimed the hospital did not provide adequate or sufficient care to prevent his avoidable death.

Interestingly, Rhode Island is not among the states that have adopted "Sorry Works" legislation. Perhaps had they adopted the legislation, the apology would have come much sooner avoiding the costs and hardship associated with litigation on both the Woods family as well as the doctors and staff of the hospital. After all, Mr. Woods died in 2006. Did the hospital administrators really just now discover in a moment of enlightenment that their doctors and staff had done something wrong? And to boot, decide that they would create an institute toward avoiding errors similar to those newly discovered errors in flash of enlightenment? It's not likely. Instead, they likely saw the trial headed south, and they wanted to avoid a catastrophic verdict. The Woods lawyers likely understood this as well. Yet the apology still brought a quick resolution to the case.

The "Sorry Works" movement has grown rapidly over recent years. The program recognizes that often what a family or victim needs most is recognition of their injuries and acknowledgement of a wrong committed, along with fair compensation for their injuries. This means acceptance of responsibility and liability for the negligent actions and the damages they cause. Instead, many hospitals and doctors take the opposite approach much like Albuquerque's mayor which is to admit no wrong, and settle nothing without a fight.

Where there is truly wrongdoing and injury, this approach is devastating to the victim and financially disastrous for the state's medical providers as they end up paying in the end. The only beneficiaries of this approach are the defense attorneys who feed at the trough of governmental legal defense.

Related Reading:
Caps in New Mexico Medical Malpractice Claims Against the Government: No Wiggle Room for Multiple Beneficiaries
The High Costs of Medical Errors on the Healthcare System

Collins & Collins, P.C.
Attorneys at Law